X

Thank you for sharing!

Your article was successfully shared with the contacts you provided.
USING TERRI The Religious Right’s Conspiracy to Take Away Our Rights By Jon Eisenberg Harper San Francisco/$24.95 Jon Eisenberg has written a thoughtful, nuanced book that practitioners of any political stripe can profitably read. That book is “California Practice Guide: Civil Appeals and Writs,” published by the Rutter Group, and, unfortunately, I was not asked to review it. Instead, this review deals with “Using Terri: The Religious Right’s Conspiracy to Take Away Our Rights,” a frustratingly uneven account of the legal battle to end Terri Schiavo’s life. Eisenberg was a personal participant in that battle, and his analysis of the legal, ethical and religious aspects is refreshingly evenhanded. But when the book moves into the political world, its intellectual wheels fall off. The reference to “conspiracy” in the title is not hyperbole. The author sincerely believes in the existence of an “evil conspiracy.” In his fevered perspective, the battle over the end of Terri Schiavo’s life is not a contest between honest but conflicting ethics. It is an assault by a real live cabal � a fanatical network of financiers, think tanks and foot soldiers � on the Constitution itself. If Oliver Stone ever decides to produce a movie about the Terri Schiavo tragedy, he will find the beginnings of the screenplay in Eisenberg’s book. Before Katrina and Rita, before Roberts and Miers, before all the other Big Stories of 2005, there was Terri Schiavo. Attention spans are short in our media-rich world, and she is already fast fading from public consciousness. But her story dominated the news for the first four months of the year. Jon Eisenberg played an important role in that story. He volunteered to work without pay on the legal team representing Michael Schiavo, Terri’s husband in the appeals. In February 1990, Terri Schiavo collapsed. Her heart stopped and her brain suffered oxygen deprivation. She emerged from her coma, but she never regained consciousness. As a young woman, Terri’s weight had ballooned up to 250 pounds; after marrying Michael, it fell to as low as 110. She was probably bulimic, and the abnormalities accompanying that condition may have caused her collapse and cardiac arrest. For the remaining 15 years of her life, Terri was kept alive by a feeding tube inserted directly into her stomach. In June 1990, a Florida court appointed Michael her guardian. At the time, Michael and Terri’s parents were close. In 1993, a successful lawsuit against an obstetrician who had failed to detect Terri’s potassium imbalance generated a million-dollar verdict. With the money came quarrels, and later that year the parents unsuccessfully challenged Michael’s guardianship. In 1998, Michael petitioned a Florida probate court to remove Terri’s feeding tube. The legal battle lasted seven years. After Judge George Greer ruled in favor of removal, the case went up and down and up and down the state appellate court system. By 2003, there had been nine applications to the court of appeal yielding four written opinions; the Florida Supreme Court had refused to intervene three times and the U.S. Supreme Court once. Yet more was to come. In 2005, the Florida Legislature and then the Congress passed legislation directly addressing Terri’s case. Her parents pursued federal action, which produced written decisions from the district court and the Eleventh Circuit. Again, the U.S. Supreme Court refused to hear the case. By the time the legal struggle ended, and Terri’s tube was removed for the third and final time, her case had become the most heavily litigated “right to die” case in history. To Eisenberg, the legal and moral issue turns on the concept of personal autonomy. He explains: “The issue is not what Terri’s spouse would want or what her parents would want, but what she would want. That’s the essence of autonomy.” Few would quarrel with that proposition. But how could we know what Terri would want, when she could not speak? We must rely on surrogates. To his credit, Eisenberg concedes that any process entrusting such life-or-death decisions to surrogates could lead to a slippery slope of abuse. Relatives waiting to inherit may have conflicts of interest. Hospitals facing cost-cutting pressures may be tempted to advise “pulling the plug” earlier than appropriate. What standard of proof should courts require? When does the “right to die” become a duty to die? His e-mail dialogue with Diane Coleman, the head of a disability advocacy organization that opposed Eisenberg’s efforts, is reproduced in the book; it shows two first-rate minds wrestling with these moral and practical difficulties. Like any partisan, Eisenberg is sometimes selective in his facts. He does not even mention Michael’s romantic involvement with another woman, with whom he fathered two children, until near the end of his book. Then he cites it only to show how Terri’s parents “thoroughly demonized Michael.” This is unfair. Michael’s relationship with another woman was entirely relevant to his qualification to speak on behalf of his wife. Eisenberg argues that Michael had a right to date other women and “to make a new life for himself.” Granted. But by opting for this “new life,” didn’t Michael opt out of the right to speak for the woman of his old life? Terri’s parents could not raise a new daughter, nor could they “make a new life” for themselves. They did not begrudge Michael his right to move on. But they did begrudge him the right to speak for their daughter while doing so. Of course, her parents may have been wrong, and Michael may have been right in divining Terri’s wishes. But the parents were willing to take responsibility for their daughter. They were not asking the state for help. Michael and his allies believed that Terri’s mind was irretrievably lost. What harm would have resulted if the parents had been allowed custody of her still-breathing body? Eisenberg does not address these questions. Instead, he turns to what he sees as the politics of the controversy. When he does, the book enters a padded cell of paranoia. A SHADOWY WEB? Eisenberg was part of a large appellate legal team, including himself, seven Jenner & Block lawyers and Harvard professor Laurence Tribe. Eisenberg wonders who was footing the bill for the parents’ far smaller and less prestigious team. When he investigates, he finds “one big web” of shadowy donors, think tanks and operatives. Eisenberg is convinced that this web constitutes an evil and well-financed conspiracy, dedicated to the subversion of our constitutional rights. He believes this quite literally. “Hundreds of millions of dollars are funding a conspiracy � there is no better word for it � to take away our right of personal autonomy,” he warns. “If you believe it was evil that a group of lawyers, politicians and think tanks used Terri Schiavo to mount an assault on the U.S. Constitution, then it is no exaggeration to call their plan a conspiracy to take away your rights.” It is interesting to juxtapose Eisenberg’s exposition of the Religious Right’s conspiracy with a mirror image Leftwing conspiracy unearthed by the Center for the Study of Popular Culture, headed by former radical leftist David Horowitz. Eisenberg cites the Center as part of the Religious Right conspiracy. But the viewpoints of Eisenberg and the Center have much in common � despite the fact that they came out on opposite sides of the Terri Schiavo case. The Center’s Web site (frontpagemagazine.com) features an article by Horowitz’s colleague, Richard Poe, written just a few days after Terri Schiavo died, on the so-called “Soros Shadow Party.” The reference is to international currency trader George Soros, who plays the same boogie-man role for the Right as Richard Scaife and others play for the Left. Eisenberg writes of “a handful of foundations that are quietly funding just about every ultraconservative cause on the political map.” Poe writes of a “shadow party” consisting of a “network of leftwing NGOs, activist Web sites, section 527 ‘stealth PACs,’ public employee unions and radical foundations.” Uncovering conspiracies is hard work. Eisenberg: “I spent dozens of hours wading through a sea of Internet references, 990 forms and news reports. � Some of the players are extremely secretive and strive mightily to hide the amount and sources of their funding.” Poe: “It took years of patient sleuthing to penetrate the Shadow Party’s secrets.” But hard work pays off. Eisenberg: “Eventually I was able to chart a dizzying map of the Religious Right’s financial and political links. � ” Poe: “ Much of [our] research can now be found at DiscovertheNetwork.org, [which] illuminates the intricate personal and financial relationships binding Left Wing organizations together.” With all the deception and detours, how’s a dedicated conspiracy-buster supposed to figure it all out? Eisenberg: “I heeded the advice given by Mark ‘Deep Throat’ Felt � during the Watergate scandal: ‘Follow the money.’” Poe: “I worked with [David] Horowitz to follow the money trail and identify the specific levers of control. �” After following the money, what did Eisenberg and Poe find out? Eisenberg: “I discovered a three-tier structure. In the top tier are the funders. � Eventually I was able to identify seven foundations in the high command.” Poe: “[Horowitz and I] revealed that Soros administers his network through a core group of seven nonprofit organizations, which we named the Seven Sisters.” And where does the money go? Eisenberg discovered that money from “the seven foundations” was channeled down to a network “of think tanks and other organizations � to pursue their litigations, publication, activism, education and lobbying strategies.” Poe discovered that “through these Seven Sisters, Soros and his team convey money, information and marching orders down the line to a much larger network encompassing radical public employee unions, leftwing foundations and street-activist groups.” Despite their concern over the political machinations of the other side’s conspiracy, the overriding worry for both Eisenberg and Poe is the fate of the judiciary. Eisenberg: “During his second term, [President Bush] will have the opportunity to make several appointments to the U.S. Supreme Court. � He wants to reshape the Supreme Court and the lower federal courts by appointing justices who, as he puts it, ‘understand that our rights are derived from God.’” Poe: “Democrats [aim to] be free to pursue another priority goal of George Soros � to spend the next three years packing our federal courts with leftwing extremists, right up to the U.S. Supreme Court.” Both conspiracies are inspired by Terri Schiavo to carry out their respective assaults on the judiciary. Eisenberg: “The leaders of the Religious Right intend to use Terri Schiavo as a springboard for future attacks on America’s judiciary.” Poe: “Democrats � will fill the benches with corrupt radical judges cut from the same cloth as those who sent Terri Schiavo to her grave.” STUDY IN PARANOIA Forty years ago, Columbia University professor Richard Hofstadter, in “The Paranoid Style in American Politics,” analyzed the syndrome reflected in this kind of writing. He dubbed it the “paranoid style” because “no other word evokes the qualities of heated exaggeration, suspiciousness and conspiratorial fantasy” that he had in mind. Unlike the clinical paranoid, who sees a hostile world directed specifically against himself, the political paranoid sees diabolical forces directed against “a nation, a culture, a way of life.” From the earliest day of the Republic, the paranoid style has discovered and dreaded many demons: Illuminati, Masons, Catholics. But for all its manifestations, certain common elements recur. Speakers of the paranoid style see “the existence of a vast, insidious, preternaturally effective � conspiratorial network designed to perpetrate acts of the most fiendish character.” Eisenberg’s book is chock-full of facts and figures, names and dates, all purporting to document the scope of this “evil conspiracy.” Eisenberg takes this information (which is freely available from the Internet and government sources), as proof that all events are centrally planned, perfectly coordinated and supremely dangerous. As Hofstadter observed, those are the very hallmarks of paranoid scholarship: “The typical procedure of the higher paranoid scholarship is to start with defensible assumptions and with a careful accumulation of facts, or at least what appear to be facts, and to marshal these facts to an overwhelming ‘proof’ of the particular conspiracy that is to be established. It is nothing if not coherent � in fact, the paranoid mentality is far more coherent than the real world since it leaves no room for mistakes, failures or ambiguities. It is, if not wholly rational, at least intensely rationalistic; it believes that it is up against an enemy who is as infallibly rational as he is totally evil, and it seeks to match his imputed total competence with its own, leaving nothing unexplained and comprehending all of reality in one overreaching, consistent theory.” As one quickly finds from surfing the Internet, the paranoid style is alive and well. In addition to the mediatransparency.com Web site, which Eisenberg credits for alerting him to the cabal, concerned citizens can visit PublicEye.org, NameBase.org, SourceWatch.org, the “Right Wing Watch” section of PeoplefortheAmericanWay.org and DiscovertheNetwork.org, for up-to-date news on how nefarious networks of the Right or the Left are subverting our way of life. The fact that Eisenberg and Poe are traveling down parallel paranoid paths may not embarrass them, for they are talking to different audiences. They are unlikely to even notice one another. As Hofstadter observed: “The singular thing about all this laborious work is that the passion for factual evidence does not, as in most intellectual exchanges, have the effect of putting the paranoid spokesman into effective two-way communication with the world outside his group � least of which those who doubt his views. He has little real hope that his evidence will convince a hostile world. His effort to amass it has really the quality of a defensive act which shuts off his receptive apparatus and protects him from having to attend to disturbing considerations that do not fortify his ideas. He has all the evidence he needs; he is not a receiver, he is a transmitter.” Because Eisenberg is a receiver, not a transmitter, he can ignore facts that “do not fortify his ideas.” For example, if the battle was master-minded by the Religious Right, why were Jesse Jackson, liberal Democratic Sen. Tom Harkin and Village Voice journalist (and self-professed atheist) Nat Hentoff agitating on the same side? They don’t fit the conspiratorial construct, so they are ignored. On the other hand, Eisenberg is willing to confront the pro-parents role of Ralph Nader. He explains: “Nader accepted contributions from wealthy Republicans during his 2004 presidential campaign.” Et tu, Ralph? And what about all those politicians working for the conspiracy? Aren’t politicians supposed to care mainly about getting and staying in office? As Eisenberg himself shows, there were five major polls taken on the controversy. Three were conducted before Congress intervened, and two were conducted right after. They all showed the same thing. The politicians were taking an immensely unpopular position. All five polls found that substantial majorities of the American people favored removal of the feeding tube, opposed the intervention of Gov. Jeb Bush and Congress, and favored leaving the decision in the hands of the patient’s spouse. The polls showed that these majority positions crossed party, ideological, gender and religious lines. Republicans as well as Democrats, conservatives as well as liberals, even evangelical Christians � all opposed the politicians’ intervention. And yet the politicians took the unpopular position anyway. Why? Eisenberg might argue that they did so because they were so enmeshed in the Religious Right conspiracy that they lost sight of their own political self-interest. But isn’t it possible that the politicians � just like Jesse Jackson, Tom Harkin, Nat Hentoff and Ralph Nader � were simply doing what they thought was right? Eisenberg professes his dedication to the principle of personal autonomy. But in his paranoid world of conspiracy, there is no intellectual autonomy. There are only automatons. Eisenberg’s book was fast off the starting blocks. Now the Right must play catch-up. If my concerns are justified, we will soon see published accounts of the case attributing the death of Terri Schiavo to the machinations of a Left Wing network of interconnected foundations and activists. As punishment for allowing his fine legal mind to wander into the swamps of paranoia, Jon Eisenberg should be consigned to review every conspiracy book on the Terri Schiavo case published by the Right. Lawrence J. Siskind, of San Francisco’s Harvey Siskind Jacobs, specializes in intellectual property law..

This content has been archived. It is available through our partners, LexisNexis® and Bloomberg Law.

To view this content, please continue to their sites.

Not a Lexis Advance® Subscriber?
Subscribe Now

Not a Bloomberg Law Subscriber?
Subscribe Now

Why am I seeing this?

LexisNexis® and Bloomberg Law are third party online distributors of the broad collection of current and archived versions of ALM's legal news publications. LexisNexis® and Bloomberg Law customers are able to access and use ALM's content, including content from the National Law Journal, The American Lawyer, Legaltech News, The New York Law Journal, and Corporate Counsel, as well as other sources of legal information.

For questions call 1-877-256-2472 or contact us at [email protected]

 
 

ALM Legal Publication Newsletters

Sign Up Today and Never Miss Another Story.

As part of your digital membership, you can sign up for an unlimited number of a wide range of complimentary newsletters. Visit your My Account page to make your selections. Get the timely legal news and critical analysis you cannot afford to miss. Tailored just for you. In your inbox. Every day.

Copyright © 2021 ALM Media Properties, LLC. All Rights Reserved.